Citation Nr: 1034186
Decision Date: 09/13/10 Archive Date: 09/21/10
DOCKET NO. 06-34 948 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased rating for degenerative changes
in the right wrist, hand, fingers, and thumb, currently evaluated
as 20 percent disabling.
2. Entitlement to an increased rating for a lacerating injury of
the right hand, currently evaluated as 0 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
N. J. Nardone, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1963 to December
1964.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from a February 2006 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) that confirmed and
continued the 0 percent evaluation in effect for degenerative
arthritis of the right hand, fingers, and thumb, and the 0
percent evaluation in effect for a lacerating injury of the right
hand. By rating action dated in October 2006, the RO increased
the evaluation in effect for degenerative changes in the right
wrist, hand, fingers, and thumb to 20 percent effective September
30, 2005.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
After a review of the record, the Board observes that further
development is required prior to adjudicating the Veteran's
claims.
The Veteran is service-connected for degenerative changes in the
right wrist, hand, fingers, and thumb, which is currently
evaluated as 20 percent disabling, and a lacerating injury of the
right hand, which is currently evaluated as 0 percent disabling.
He contends that he is entitled to an increased rating for each
disability. The degenerative changes in the right wrist, hand,
fingers, and thumb and the lacerating injury of the right hand
are currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code
5010 and 38 C.F.R. § 4.118, Diagnostic Code 7805, respectively.
The claims file contains conflicting medical evidence with
regards to the nature of the Veteran's right hand and wrist
disabilities and the symptomatology associated with such
disabilities.
In a December 2004 letter, a VA nurse practitioner (NP) indicated
that he had reviewed the Veteran's claims file and he opined that
the Veteran's right wrist and hand arthritis changes are likely a
result of a previous fracture sustained during active duty. The
NP also noted some mild gouty changes that could contribute to
some of these findings. The NP further said that the Veteran's
symptoms, which have been increasing over time, are typical of
post-fracture arthritic joint changes complicated by age.
The reports of the January 2006 hand, thumb, and fingers VA
examination, and the April 2006 aid and attendance or housebound
VA examination indicate that the Veteran wore a carpal tunnel
support on the right hand and reported experiencing numbness and
weakness in the hand. Upon physical examination in January 2006,
the findings of the examining physician were essentially
unremarkable. The examiner noted that there was no clinical
evidence of carpal tunnel syndrome. Further, the examiner stated
that X-rays of the right hand were normal and there was no
evidence of arthritis. The examiner noted that an
electromyograph (EMG) of the right hand was obtained at that time
and it was the impression of the interpreting physician that the
findings were consistent with right ulnar sensory neuropathy.
There was also no electrodiagnostic evidence of right carpal
tunnel syndrome. The diagnosis was of normal right hand without
any spasm or carpal tunnel syndrome. According to the EMG,
findings were consistent with ulnar sensory neuropathy. There
was no evidence of degenerative arthritis in the right hand.
However, the Board notes that the report of the radiology staff
physician who interpreted the X-rays of the right hand taken in
association with the January 2006 VA examination indicates that
the impression included degenerative changes, especially at the
first carpometacarpal joint and the radiocarpal joint.
Additionally, upon physical examination during the April 2006 VA
examination, the right wrist showed diffuse tenderness to
palpation, diffusely restricted range of motion with marked
tenderness, and markedly decreased grip. Further, decreased
pinch and decreased thumb abduction and apposition were noted in
the right hand. The assessment included degenerative arthritis
of multiple joints.
The January 2006 VA examiner provided an opinion dated in
September 2006 in response to a request for a medical opinion to
reconcile the various findings in the claims file with regards to
the presence of arthritis due to the injury in-service and to
address whether the sensory ulnar neuropathy is at least as
likely as not due to the injury in-service. After reviewing the
claims file, the examiner opined that there was no arthritis of
the right hand at the time of several of the examiner's
examinations of the Veteran's right hand. The examiner stated
that, as such, it was not possible for the examiner to reconcile
any other information provided by other physicians. The examiner
noted that even the reporting of the X-ray report is dependent on
another physician's opinion and expertise. With regards to the
ulnar sensory neuropathy which had been reported by the EMG
physician, it was the examiner's opinion that it is less likely
as not that the reported ulnar neuropathy is due to the injury
which had been described to the examiner and recorded in the
service treatment records.
The examiners at each VA examination failed to provide objective
findings pertaining to the right wrist, hand, fingers, and thumb,
specifically with regards to limitation of motion and any
possible ankylosis. Nor did the examinations address the
Veteran's right hand laceration scar residual. Thus, in order to
fully evaluate the Veteran's claims, the Board finds it necessary
to afford the Veteran another VA examination.
Ongoing medical records should also be requested. The Board
notes that during the April 2006 VA examination, the examiner
noted that VA treatment records dated through March 2006 had been
reviewed. However, the most recent VA treatment records in the
claims file are dated in January 2006. 38 U.S.C.A. § 5103A(c)
(West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992)
(VA medical records are in constructive possession of the agency,
and must be obtained if the material could be determinative of
the claim).
Finally, during the pendency of this appeal, the United States
Court of Appeals for Veterans Claims (Court) issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim, including the degree of
disability and the effective date of an award. In the present
appeal, the appellant was provided with notice of what type of
information and evidence was needed to substantiate his claims
for an increased evaluation, but he was not provided with notice
of the type of evidence necessary to establish a disability
rating or effective date for the disabilities on appeal. Thus,
corrective notice can be provided on remand.
Accordingly, the case is REMANDED for the following action:
1. Please send the Veteran a corrective VCAA
notice under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), that includes an
explanation as to the information or evidence
needed to establish a disability rating and
effective date for the claims on appeal, as
outlined by the Court in Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. Obtain relevant VA treatment records
dating since January 2006 from the John D.
Dingell VA Medical Center in Detroit, MI.
3. Schedule the Veteran for a VA hand
examination to determine the current nature
and severity of his service connected
degenerative changes in the right wrist,
hand, fingers, and thumb, and for evaluation
of the scar, residual of laceration of the
right hand. The claims folder should be made
available to and be reviewed by the examiner
in conjunction with the examination. All
necessary tests should be performed.
Following review of the claims file and
examination of the Veteran, the examiner
should identify any right hand and wrist
conditions found. Further, the examiner
should describe the symptomatology associated
with any degenerative changes in the right
wrist, hand, fingers, and thumb, including
any ankylosis. The examiner should provide
range of motion measurements of the right
wrist, fingers, and thumb, to include any
decreased motion due to pain. The examiner
should also describe any functional loss
pertaining to any degenerative changes in the
right wrist, hand, fingers, and thumb, to
include as due to pain or weakness, and
document all objective evidence of those
symptoms. In addition, the examiner should
identify any current right wrist or hand
symptoms that result solely from a nonservice
connected disability such as right ulnar
sensory neuropathy rather than from his
service connected degenerative changes in the
right wrist, hand, fingers and thumb.
4. The Veteran should also be afforded a VA
scar examination of the right hand, to
determine the nature and extent of the
residuals of the right hand laceration (noted
as a scar on the dorsum of the right hand on
a September 1966 VA examination). The claims
folder should be made available to and be
reviewed by the examiner in conjunction with
the examination. All necessary tests should
be performed. The examiner should describe
the scar to include the measurement of the
scar, as well as any other symptomatology
associated with the scar to include whether
it is unstable or painful.
5. Following completion of the above, the
RO/AMC should review the evidence and
determine whether the Veteran's claims may be
granted. If not, he and his representative
should be furnished an appropriate
supplemental statement of the case and be
provided an opportunity to respond.
Thereafter, the case should be returned to the Board for further
appellate consideration, if in order. The Board intimates no
opinion as to the ultimate outcome of this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).